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Academic libel trial takes tragicomic turn: Part 1

Worried about a possible defamation suit, Slavic studies professors exchange unwittingly hilarious emails about the plaintiff, which are later revealed in court

(February 2015) Diane Koenker leaves her London Review of Books tote bag on the defence counsel’s table and takes her place on the witness stand. A no-nonsense woman, whose one concession to the beauty industry is revealed by the white roots of her short brown hair, Koenker is a Soviet and modern Russia specialist and the head of the history department at the University at Illinois at Urbana Champaign. She has travelled to Toronto to testify at this defamation trial because a decade ago she was the editor of the academic journal, Slavic Review. Under her leadership, it published a highly unflattering review of the book, Secret City: The Hidden Jews of Warsaw, 1940–1945 by Gunnar S. Paulsson, PhD.

Paulsson, a Toronto resident who made a mid-life career switch from the computer business into academia, believes that the Slavic Review’s critique torpedoed his chances of ever finding a tenured teaching position and caused him to become known as a crackpot and anti-semite. As soon as he read the review in the summer of 2004, he contacted Koenker to demand a retraction, an apology, and the commissioning of a replacement review. Although she eventually conceded that the disputed book review did indeed contain sloppy errors, Koenker would not offer Paulsson anything more than the standard 250-word reply in the letters column. After much back and forth, including one false promise of resolution, Paulsson threatened a libel suit. Recognizing the seriousness of the situation, Koenker alerted the members of her editorial board. Her warning email began:

Dear Friends,
The Slavic Review Editorial Board is scheduled to meet at the Boston Meeting of the AAASS on Sunday December 5, 10:15 am to 12:15 pm in the Salon 1 meeting room. Due to financial exigencies, there will be no refreshments. There is also relatively little urgent business with the exception of a small dark cloud on the horizon concerning a book review.

Padraic Kenney, a board member who now teaches at Indiana University, realized immediately that the unnamed book causing the problems had to be the recent winner of the Orbis Prize, awarded bi-annually by the Polish Studies Association, whose book prize committee he happened to chair. He asked Koenker if there was anything he could do to mediate and they agreed it might help if he tried to calm Paulsson down. Unfortunately, their plan backfired. “It’s getting worse,” wrote Kenney ten days later. “Just got an email from Paulsson, full of invective and clear legal threats. This guy is difficult.” Given that he would be presenting Paulsson with his Polish Studies book prize right before dashing off to the Slavic Review editorial board meeting, Kenney worried about potential awkwardness. “My toughest task that morning will be, I think, to disengage from him after awarding his prize … I am confident I will be able to make it to the meeting alone, but one never knows.”

As the conference drew nearer, board members vied to outdo each other with declarations of support for academic freedom of speech and advisories about the dangers of allowing unwanted guests to attend their get-together. “Dear Padraic,” wrote one distinguished chair-holding professor, “I suggest you use your charm and persuasive powers to convince Paulsson not to crash the board meeting.” To which Kenney responded: “I will escape the PSA meeting through a trapdoor in the ceiling emerging thru a heating duct — in disguise, of course, into the SR meeting.”

Finally, in the last of the editorial board’s pre-Boston communications, Koenker emailed everyone: “I’ve heard enough to confirm my own feeling that we should not set a precedent by by turning the board meeting into a public hearing. Should Dr. Paulsson follow Padraic through the ventilator shaft, I will ask him to leave, and if he does not, (I will) have the phone number of hotel security handy to have him removed.”

While Paulsson is not suing Koenker, his defamation lawsuit, which was eventually launched in 2006, names as defendants the Slavic Review; its publisher, the American Association for the Advancement of Slavic Studies; the University of Illinois, which hosted the journal and lessened Koenker’s teaching load so she could edit it; and the author of the book review, Leo Cooper, a 93-year-old survivor of the Warsaw Ghetto and an honorary faculty member at the University of Melbourne in Australia. Complicating matters further Cooper has declined to defend himself, meaning a default judgment against him is granted automatically. The University of Illinois and the Slavic Studies Association are represented by Geoffrey Adair, a top Toronto trial lawyer who has called Koenker to testify for the defence. The Slavic Review is not considered a legal entity.

Adair begins his questioning of Koenker, the second and last of the witnesses he calls during the trial, by eliciting biographical details designed to show the jury that she is an eminently reasonable and respectable woman. He notes in his big booming courtroom drawl that she is mentioned in Who’s Who and has just recently won the outstanding achievement award of the Association of Women in Slavic Studies. The long list of books Koenker’s edited and written includes Moscow Workers and the 1917 Revolution, Revolutions from the Russian Archives and, most recently, Club Red: Vacation, Travel and the Soviet Dream, published by Cornell University Press in 2013.

“What’s the theme of that book? What’s it all about?” asks Adair, who, throughout the trial, has cast himself in the role of interpreter to the jury of the strange and cutthroat customs of academia.

“It’s a study of Soviet vacation practices and tourism under socialism from the 1920s to the 1980s,” answers Koenker, warming to her subject matter. “There were two types of vacations. One was a health spa and the other was active tourism.”

“What does a book like that contribute for historians?” asks Adair, who could be either genuinely puzzled or faking it.

“It is trying to argue that there was a consumer society under socialism, that there was a particular set of practices and values, that it was driven by consumer demand and not just the regime.”

“I see,” says the lawyer, politely cutting his witness short and shifting topics before the jury’s attention wavers. He will spend the next hour or so skillfully guiding Koenker through a long series of questions about the operations of the Slavic Review and her handling of the dispute over the review of Paulsson’s book. Despite a bit of a bureaucratic streak, she comes across as a fair-minded and dedicated scholar who was truly worried about the dangerous precedent that would have been set had she withdrawn a negative book review.

***********

In preparing for this trial and his cross examination of Koenker, Paulsson has studied up on courtroom technique even going so far as to read Geoffrey Adair’s book on the topic, On Trial – Advocacy Skills Law and Practice. Yet under the pressure of trial, he forgets what every casual Law and Order watcher knows: never ask a question in court if you don’t already know the answer. After meandering from subject to subject — touching upon Soviet propaganda and Dezinformatsiya, as he pronounces it with an authentic-sounding Slavic accent — Paulsson moves in for what he clearly hopes will be the killer question of his cross examination.

He asks Koenker how she would have felt if, back when she was a young, aspiring academic, a reviewer had characterized her first book as Stalinist propaganda. Although she’s paused warily before answering many of Paulsson’s previous questions, Koenker responds to this one without hesitation. Her second book, she says, almost a little bit triumphantly, “was reviewed in a very prominent literary journal, the Times literary Supplement, by a prominent historian, who accused me of inadvertently imbibing Marxist-Leninist propaganda.”

Paulsson is taken aback. “Inadvertently imbibing,” he mumbles to himself stalling for time and shuffling papers before opting to try a completely different tactic. “Diane Koenker is wearing a pink shirt,” he announces. “Is that an honest statement?” Given that the witness’s blouse is a colour I would describe as plum, I’m confused by what Paulsson’s trying to achieve, but Koenker doesn’t skip a beat. “That’s a factual statement,” she replies. “Honesty implies a value judgment.”

“Does it really?” asks Paulsson dramatically as he turns to look at the defence counsel. “Mr. Adair, is your client wearing a pink shirt?” Adair appears ready to raise an objection, but before he’s out of his chair, Madame Justice Darla Wilson, who has been extremely patient with Paulsson’s lack of familiarity with the law through a week of trial, interrupts. “Doctor,” she says firmly, “the purpose of cross examination is to ask the witness questions that are relevant to the issues and lawsuit.”

After many more such admonitions from the judge and objections from the defence, Paulsson finally winds up his cross examination back at the 2004 Boston conference. Although the Slavic Review’s editorial board affirmed the rightness of its previous position and decided to grant no concessions, both Koenker and Kenney left Boston cautiously optimistic that Paulsson might be prepared to let things drop. Kenney had gone out of his way to tell him how much he liked Secret City and that it was beneath him to get tangled up with Cooper in a petty dispute. Koenker learned that a former grad student of hers, who was interested in the Catholic church in Poland during the war, had met Paulsson at the book exhibits. “If he can establish a working relationship with Paulsson, this will also be helpful in conveying norms and ‘socializing’ him,” she wrote in a post-conference email to Kenney.

At the trial, Paulsson calls on Koenker to explain what exactly she meant by socialize, a term he finds patronizing. “I felt that he might help you understand the ways of American academia and why the response to a negative book review might be better pursued in a positive way,” she explains. Minutes later she steps down from the witness stand and is shepherded by Mr. Adair’s junior co-counsel, Jennifer King, into a taxi cab that takes her to the airport. Soon she will be back in the United States which, despite its legendary litigiousness, is a country where it is far more difficult to sue for libel than Canada or pretty much anywhere else in the world.

This trial took place in the winter of 2015. For reasons which I won’t get into yet, I am only publishing this article now, two and a half years later.

4 thoughts on “Academic libel trial takes tragicomic turn: Part 1”

The point is not that the review is “highly unflattering” or that it is “negative”, but that none of it is true.

Let’s be clear: I worked long and hard to establish a solid reputation as a Holocaust scholar; Cooper portrays me as a Holocaust denier. His allegations have been widely believed and repeated, and the effects on my reputation and career should be obvious.

In my first letter to Koenker, I wrote: “Cooper’s ‘review’ is not a legitimate book review at all, but a polemical hatchet-job” – defined in Wiktionary as “a work of criticism which aims to destroy a reputation” – “relying on misrepresentation, misquotation, misattribution, quotation out of context and just plain fabrication to mislead your readers, not only on points of detail but as to the nature and purpose of the book.

An English judge, Lord Ellenborough, setting out what lay outside the bounds of legitimate criticism put it more succinctly: a reviewer can be harsh or unfair, but is not allowed to “introduce fiction for the purpose of condemnation”. Which Cooper’s review is, in whole and in part.

It is intentional, it is malicious, it is untrue, and it would be found defamatory in any court under any law. Adair and his “expert witness”, Dr Grossman, managed to pull the wool over your eyes, and the jury’s and the judge’s eyes as well.

Cooper is not a survivor of the Warsaw ghetto. He fled to the Soviet Union when the war broke out and lived there for some time under Stalin. Eventually, he made his way to Australia, where he earned a PhD at the age of 65 and became a sovietologist. In 2000, when he was about 78, he published a book, “In the Shadow of the Polish Eagle”, which was memorably dismissed in a review in the Spring 2002 issue of Slavic Review by David Engel, who holds an endowed chair in Holocaust Studies at NYU. Engel wrote that Cooper’s book was “based on almost no original research”, that Cooper merely asserted opinions based on his experiences in pre-war Poland, and that his book was thus “worse than useless” and “a step backwards in a field that has made much progress”.
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Shortly after that review appeared, the same journal engaged Cooper to review my book. He abused the occasion to continue his polemic against Polish antisemites and Holocaust deniers, using my book as a straw man.

From an academic point of view, Cooper’s review is an ad hominem attack containing fabrications, falsifications and deliberate misrepresentations – the elements of academic fraud.

There are unfortunately no mechanisms in place for dealing with academic fraud, though it happens quite often (see http://www.retractionwatch.com), and It often takes many years to expose. The current champion, Yoshitak Fujii, published no fewer than 183 articles that turned out to be fraudulent, over the space of 18 years. When he was finally exposed, all the articles were retracted and his career was at an end. That’s the only proper response: debating with liars only gives them oxygen; they have to be exposed.

Slavic Review also has no mechanism to deal with an ad hominem attack. It has a policy against publishing such attacks, but there is no way to enforce it. Koenker’s logic seems to be: We don’t publish ad hominem attacks. We published this review. Therefore it is not an ad hominem attack.

I didn’t “demand” a retraction and apology. Koenker had heard from me and six others, including Antony Polonsky, an eminent scholar in the field. Polonsky expressed his “acute disquiet”, advising her that “Cooper is not regarded in the field as a serious scholar”, that his review was “little more than an expression of his personal spleen”, and that publishing it had been “a serious error”.

A responsible editor would have published Polonsky’s letter and would have taken the complaint seriously. Instead, she buried the letter and stonewalled me.

An ad hominem attack based on false statements is libellous by definition, but I said so only after months of head-butting with Koenker. I pointed out that the journal’s own reputation was at stake, and proposed (not demanded) that the proper course of action was to print a retraction and apology. I didn’t sue until two years later, when it was clear that Cooper’s allegations were being widely believed and repeated and there was concrete evidence of damage to my career.

In hindsight, I shouldn’t have wasted time arguing with Koenker. Once she demonstrated that she was not acting in good faith, I should have gone to the best defamation lawyer in town and had him write a cease=and-desist letter. Then they would have had to take me seriously.

It is absolutely essential to understand the difference between a “negative review”, which I could have dealt with in a short reply, and “fiction for the purpose of condemnation”. I was not prepared to engaging in a debate with Cooper, not on any point of substance, because he raises none, but on competence and integrity, Retraction was and remains the only way to deal with it.

Default judgments are not granted automatically, Though the defendant is deemed to admit the allegations, the plaintiff has to make out a case. Here, the default judgment was issued by the trial judge and based on the evidence heard at trial. She awarded $76,000 in damages and ordered Cooper to pay the costs of an action he chose not to defend, which is one of my grounds for appeal. Even if there were any practical possibility of having the judgment enforced in Australia, Cooper would contest it on those grounds.. In any case, the judgment was neither routine nor trivial.

In commenting on any case, you have to start with what the case is about: in a criminal case, what is the defendant charged with? In a civil case, what is the plaintiff’s complaint? You just jump to the defendants’ case and buy and repeat their misrepresentation of my case.
Here’s my complaint:

Before:

In 2004, I was well-known and respected internationally as a Holocaust scholar. In that year, my book won the second of its three prizes; two of my articles were reprinted in an anthology of “the most significant articles on the Holocaust published in the past 60 years”; I was invited to attend a planning meeting for a new museum of the history of the Polish Jews as one of “10-12 leading North American experts”, I gave an endowed lecture at Central Connecticut State University and a keynote address at a conference in Warwick, England, and I was active on the conference circuit internationally.

My career had flourished. In 1994-1998, I had held a full time post as Lecturer and Director of the Stanley Burton Centre for Holocaust Studies at the University of Leicester. In 1998-2000 I was tasked as Senior Historian with “ensuring the accuracy and balance” of the permanent Holocaust exhibition then under construction at Britain’s national war museum. Concurrently, I taught part-time and in 2001 held a visiting faculty post at Oxford, followed by a fellowship at the US Holocaust Memorial Museum in Washington.

The book also had great reviews.

Then the Slavic Review published what purported to be a review of my book by one Leo Cooper.

The Libel:

In academic terms, Cooper’s “review” was an ad hominem attack, attributing to me views I do not hold, claims I do not make and words I did not write, in order to characterize me as an antisemite and a Holocaust denier. Because he makes his case through falsified and fabricated quotations, untrue factual assertions and other misrepresentations, his “review” also constitutes academic fraud.

In the context of a book about the Jews of Warsaw during the Holocaust, according to Cooper, I “attempt to prove that escape was possible in all circumstances”, and state that “escape from the camps presented almost no difficulty”. I “write antisemitism out of Polish history” and claim that “the Poles were generally supportive of Jewish escapees”. Since it was easy to escape, and the Poles were supportive, “if more Jews had escaped, many more would have survived” (according to Cooper, that is the “main postulate put forward in the book”).

However, “the Jews were inhibited from escaping by the incorrect perception of the Poles as hostile”, and further “discouraged from escaping by the realization that ‘living conditions on the Aryan side were not much better than in the [Warsaw] ghetto”, and “in some ways worse.”

Therefore if Jews died during the Holocaust, it was their own fault.

The effects:

Endorsed and defended for 13 years by a leading journal, Cooper’s allegations have been widely believed and repeated. There is no trace of the allegations in anything published before that “review”, but they show up immediately afterwards in the journal’s internal email correspondence, and in a variety of subsequent reviews and articles from 2005 right up to the time of trial.

You don’t have to be an expert on the Holocaust to realize that allegations of that kind, believed and repeated by senior academics and supposed experts in the filed, have had a devastating effect on my reputation and career as a Holocaust scholar. I have about as much chance of getting an academic post as Ernst Zundel, James Keegstra or David Irving.

The law.

Cooper’s “review” is an example of what an English judge called “fiction for the purpose of condemnation”, and is libellous in any court, under any law. It easily meets the American standard of “actual malice”, and even the Canadian definition of criminal libel, which requires intent to be proved beyond a reasonable doubt.

The trial

In my half of the trial, I set out my case, using documentary evidence which the defendants did not contest. My expert witness estimated loss of income on various scenarios at between $900,000 and $1.7 million, which the defendants also did not contest.

When, as in this case, the claim concerns statements of fact, not opinion, justification, i.e. truth, is an absolute defence. An author can be contemptuous, insulting, unfair and malicious – as long as he does not introduce “fiction for the purpose of condemnation.”

However, the defendants did not plead justification, because they know damn well that nothing Cooper wrote can be justified.

Instead, their strategy at trial was to lose the facts in a fog of “opinion” and defame me further. Their party line, which they managed to sell to the trial judge, is that I sued because I was upset by some uncomplimentary language, and that I am “hypersensittive and inclined to take offence far too easily”.

Adair also got the judge to accept, and put to the jury, the notion that it is not defamatory to impugn someone’s professional integrity and competence, it has to reflect on the plaintiff’s personal reputation or “character”. Adair knows damn well that that has no basis in law, but to con the judge, he misquoted a snippet from a 1928 case: “communications injurious to the character of another”, rendering it as “communications injury IS to the character of another”, to make it seem like a definition. Meanwhile, his point is refuted by a 2008 Supreme Court case that was sitting on the table in front of him, on the same page that the trial judge had just. quoted from. I knew he was wrong, and repeatedly tried to say so, but on the spur of the moment I couldn’t put my finger on the authority.

By knowingly misstating both law and fact and deliberately refraining from drawing the court’s attention to binding on-point authority that his opponent was trying to invoke, Adair violated s.5.1-2 of the LSUC Rules of Professional Conduct.

In plain English, he won by cheating.

Now that statement defames Adair. It is intentional. It is malicious. But it is also true. And that’s the difference.

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The Missing Runner

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In January 2014 Jeffrey Boucher — a completely normal guy — went out for a run and never returned. The police still don't know what happened to him. This short e-book (magazine article length) presents my theory.